Commonwealth v. Hackett

956A.2d 978 Pеnnsylvania, Appellant COMMONWEALTH HACKETT, Appellee. Richard Pennsylvania. Court of Aug. Submitted 2007. Sept. Decided Jr., Burns, Esq., Philadelphia Esq., Hugh J. Amy Zapp, Office, of Pennsylvania. for Commonwealth Attorney’s District Gelman, for Richard Hackett. Esq., Philadelphia, E. Norris SAYLOR, EAKIN, CASTILLE, C.J., and BEFORE: TODD, McCAFFERY, BAER, JJ.

OPINION BAER. Justice court, from an order of trial appeal

This is a direct second petition Richard Hackett’s granted Appellee (PCRA), Act to the Post Relief filed Conviction pursuant 9541-9546, him a trial on the §§ and awarded new purposeful dis- engaged the Commonwealth ground of Batson v. jury crimination in the selection of violation (1986).1 79, 106 90 L.Ed.2d 69 Kentucky, 476 U.S. follow, of the trial the reasons that we vacate order For of a disposition remaining remand the matter for court and to relief pursuant is entitled question Appellee as whether Virginia, to Atkins v.

L.Ed.2d 335 of first conviction underlying Appellee’s While the facts opinion affirming are forth in our murder set degree appeal, of sentence on direct Commonwealth judgment Hackett, (1993), A.2d 719 a brief recitation of the issues raised understanding facilitate an thereof will herein. in arises from his involvement murder conviction and Keith Spence, Gray, Marvin James conspiracy

a with Maureen Gregory Ogrod Ogrod’s girlfriend, to kill -and Barrett prior at trial revealed that testimony presented Dunne. The murder, unsuc- Appellee and had night Spence Ogrod to kill and Dunne. On cessfully solicited David Carter a.m., 31, 1986, Horoschak Jeffrey 1:45 July approximately Ogrod telephone. house. did answer Ogrod’s called the death granting post-conviction relief in a case which 1. An order directly penalty imposed appealable the Commonwealth has been is 9546(d). Court. 42 Pa.C.S. to this Instead, Ogrod told Horoschak answered and Appellee Thereafter, morning, a.m. that same at 3:30 asleep. Barrett to a location Gray, and May Spence, Edward drove thirty minutes Approximately from house. Ogrod’s one block location, as later, served already at Appellee, who was Barrett, Dunne and Gray and attacked Spence, lookout while in the they slept and a crowbar while Ogrod with knives in the heart and stabbed basement of their home. Dunne was however, the attack survived instantly. Ogrod, died almost one of the Spence perpetrators. as eventually and identified murder, girl- called his About one hour after the friend, Rosenblum, her dead. Ogrod and told Wendi stayed that he had police Rosenblum to tell Appellee directed all While still covered apartment night. at Rosenblum’s Carter, blood, apparently confessed to who was with Spence incident, A he had committed murder. him after the later, Appellee dispose observed Appellee’s girlfriend week a crowbar. together tried Gray, and Barrett were

Appellee, Spence, presented Ogrod’s The jury trial as one of the attackers as well as Spence identification of Carter, Horoschak, Rosenblum, During May. testimony African-American, selection, is raised jury Spence, who Batson, alleging prosecutor, that the Jack McMa claim under white, hon, jurors. black Appellee, struck who improperly trial, four defen Following jury raised no such claim. all July of murder.2 dants were convicted On Barrett Gray sentenced to death and were to life Post-trial motions were imprisonment. sentenced were Court, in our but did appeal denied. filed direct Appellee’s judgment a Batson claim. We affirmed raise sup Hackett, 1993. Commonwealth v. sentence June ra.3 assault, aggravated possession of an

2. was also convicted оf crime, conspiracy. of and criminal instrument appeal in his direct the issue of whether a new trial 3. raised to, alia, alleged McMahon’s mis- was warranted due inter Prosecutor striking jurors. Spence’s of black Our Court affirmed conduct in the PCRA, of Appellee’s judgment

For of the sentence purposes of the time for September seeking became final when from the States Court Supreme expired.4 certiorari United 9545(b)(3) § that a be (providing judgment See Pa.C.S. review, including comes final at the conclusion of direct discre of the tionary Supreme the Court United States and review of or at the of Supreme Pennsylvania, expiration the Court review). seeking Generally, petition time for a PCRA one of the date the year judgment must be filed within 9545(b)(1).5 § becomes final. 42 Pa.C.S. not filed until

Although Appellee’s petition PCRA was first. 14, 1997, became final January well after sentence timely it deemed to be filed his judgment because final to the 1995 amendments to the prior sentence became PCRA, petition year and his was filed within one of the 3(1) effective date of such amendments. See of the Section 1), Act P.L. No. 32. (Spec.Sess. No. Nov. that a final (providing petitioner judgment whose became date of the be deemed before effective amendments would filed a under the Act if the petition only to have first filed within one of the petitioner’s petition year date). amendments’ In this first petition, effective claim, did not raise a Batson but rather asserted five claims of ineffective assistance of counsel. The court relief and this affirmed. v. denied Court (1999).6 Hackett, Pa. 735 A.2d 688 sentence, holding judgment we were unable to consider develop requisite identify- he Batson claim because failed to record venirepersons by ing prosecution, the race all of the struck venirepersons acceptable prosecution race but struck defense, jurors actually and the race of the who served. Common- Spence, wealth 1182-83 days had 90 from the date of this Court's decision on direct appeal to file a for a writ of certiorari with the United States Supreme Court. United States Court Rule 13. infra, provides exception the PCRA for an to the one- 5. As discussed year requirement petition alleges where timeliness the PCRA petitioner proves one of circumstances set forth at 9545(b)(l)(i)-(iii). Appellee's challenged 6. One of ineffectiveness claims trial counsel’s failing object ground and move for a on the effectiveness mistrial

355 filed Appellee subsequently petition a for a writ of habeas corpus 15, 2002, federal court.7 On August while corpus federal habeas pending, was Pеtitioner filed a petition second petition, raising single PCRA claim on based Atkins 304, v. Virginia, 2242, 536 U.S. L.Ed.2d 335 (2002), which held that execution mentally crimi- retarded nals Eighth violates the Amendment’s prohibition against cruel punishment. and unusual The PCRA court dismissed Appellee’s second PCRA petition hearing without a because Appellee’s corpus federal habeas petition was pending. Ap- Court, pellee appealed our requesting remand to the PCRA court on his Atkins claim. The Commonwealth did not oppose 21, 2003, Appellee’s request. On October this Court reversed the PCRA court’s order and remanded for further PCRA proceedings, citing Commonwealth v. Whitney, 572 Pa. 468, 817 A.2d 473 (holding pendency of a petitioner’s federal corpus habeas petition does not divest ‍‌​​​‌​​‌‌‌‌​​‌​‌‌‌‌‌‌‌‌​​‌​​‌‌‌​​​‌‌​‌​‌‌‌​‌​‌​‌‍a jurisdiction trial court of petition). address Com- Hackett, 49, monwealth v. 834 A.2d 514 As infra, discussed the record is unclear as to whether proсeedings were thereafter conducted on Appellee’s Atkins claim. that the peremptory Commonwealth exercised its strikes in violation of

Batson. We concluded develop that because had failed to requisite identifying venirepersons, record the race of the relevant underlying claim lacked merit and counsel could not be deemed ineffec- failing tive for to raise it. 735 A.2d at 695. granted 7. The District Court and awarded a new penalty hearing Maryland, based on v.Mills 486 U.S. 108 S.Ct. (1988) (vacating 100 L.Ed.2d 384 a death sentence because there probability was a jury may substantial interpreted have court's precluding instructions and verdict form as considering it from any mitigation jurors unanimously agreed evidence all unless on the circumstance). particular mitigating existence of a The United States Circuit, however, Appeals Court of grant for the Thix-d reversed the Pricе, (3rd Cir.2004) habeas relief. Hackett v. (holding F.3d 281 that Hackett failed to jury demonstrate a reasonable likelihood that the applied challenged instruction way and verdict form in a prevented denied, evidence), coxistitutionally consideration of relevant cert. Folino, Hackett v. 544 U.S. 125 S.Ct. 161 L.Ed.2d 1114(2005). filed a May supplemental Significantly, racially discriminatory claim of petition, asserting a claim Batson. jury selection under ruling in codefendant on the trial court’s March based matter, Spence, 8609- CP# Spence’s PCRA Prosecu granted a new trial due to in the selection purposeful jury tor McMahon’s discrimination had, turn, in Batson claim been based Spence’s process.8 conducted Philadel training by a session the upon videotaped Prosecutor Attorney presented by Office of District phia public been to the the Office McMahon, by had released whiсh a in 1997. The is of Attorney April videotape of District of McMahon, Prosecutor wherein he advocates given by lecture discrimi stereotypes the use of racial gender various jurors. of v. Base nate in the selection See Commonwealth more, (explaining 560 744 729 Pa. A.2d content, of the video and release date McMahon significance, tape). supplemental petition that his PCRA

Appellee contended timeliness one-year fell under the to the PCRA’s exception 9545(b)(1)(h), § at 42 which requirement set forth Pa.C.S. upon predicated when “the facts claim is applies which been to the and could not have petitioner were unknown diligence.” Acknowledging the exercise of due ascertained a an timeliness petition raising exception one-year that sixty days “be filed of the date requirement must within to 42 Pa.C.S. presented” pursuant claim could have been 9545(b)(2), peti- that his Appellee supplemental § maintained of court’s sixty days tion filed within the trial was in ruling PCRA matter.9 Spence appeal that the Commonwealth did not the new trial 8. asserts Spence. Appellee’s awarded to Brief at 22. alleged supplemental petition PCRA was filed also Appeals, sixty days of the order the Third Circuit Court of within Horn, reargument Holloway in v. 355 F.3d 707 denied denied, (3rd.Cir.2004), Holloway, 543 125 S.Ct. cert. Beard (2004) (holding procedural this L.Ed.2d 352 Court’s complete requirements regarding development a record to estab prima a case of a violation is unreasonable lish Batson an facie law). grant application did its of federal The PCRA court not base in his alleged supplemental also claim to relief on his Batson under entitled that he was § et He statute, seq. Pa.C.S. corpus state habeas to Spence of relief while grant contended further violation would him relief for the same constitutional denying deprivation due separate and distinct itself constitute Finally, Appellee of the law. equal protection process authority its statutory this should exercise asserted that Court 9711(h)(3)(i), his death sentence to vacate under arbitrarily imposed. that it grounds on the 5, 2005, holding evidentiary an without On October trial on the court new granted Appellee the PCRA hearing, con rejected the Commonwealth’s claim. The court jurisdiction peti it lacked over tention that reasoned that it filed. The court untimely tion because was Section sixty-day provision “trigger-date” 9545(b)(2) on the record placed March it when that the violated Batson finding its striking black by engaging purposeful discrimination in ruling Spence court that its juror. acknowledged The Prosecutor McMahon training videotape by on thе made based Appellee. the and Never against Spence had tried case who theless, that it rejected argument it the Commonwealth’s not the discovery tape ruling of the McMahon and court’s supporting application in that constituted the “facts” Spence 9545(b)(l)(ii)’s PCRA timeli exception one-year Section that be ness The PCRA court stated would requirement. “[i]t unjust equal protection to under patently deny [Appellee] and Constitutions on the basis that he did Pennsylvania color, especially skin when the not share his codefendant’s doer, [Appellee] be for the actual and was the retrial will Holloway Appellee any upon has abandoned reliance that relief on Moreover, we to in his brief filed in this Court. have adhered decision Holloway procedural requirements in as neither this criticized explicitly has overruled our Court nor the United States Court long precedent mandating complete record estab- line of a full and to Fletcher, violation. Commonwealth v. Pa. lish a Batson (2004); Spotz, A.2d 910 n. 15 Commonwealth 1212 n. 27 A.2d Opinion lookout.” PCRA Court dated June at 6. The motion to reconsider on Commonwealth’s was denied October 27, 2005.10 argues

The Commonwealth court PCRA jurisdiction lacked over Appellee’s petition' because it was untimely It contends that this filed. Court has repeatedly jurisdictional held that the PCRA time are requirements nature no authority we have to create ad hoc non- statutory exceptions alleges to them. It the PCRA ruling Spence’s timely court’s filed PCRA cannot petition as the “fact” newly upon Appellee’s serve discovered which 9545(b)(l)(ii). predicated pursuant Batson claim is to Section Rather, the that the argues upon Commonwealth “fact” which prеdicated, Batson claim is which was “unknown” “could have been ascertained diligence” 9545(b)(1)(h), exercise of due pursuant Section discovery was the of the McMahon tape, had been public April released to the of 1997. To illustrate point, that the Commonwealth asserts same evidence that en successfully abled to raise claim in timely filed petition was likewise available to Appellee April before filed long petition his second PCRA 2002 and his supplemental in 2004. Neverthe less, maintains, chose not proceed grounds on such in a fashion. analysis begins plain

Our with language Section 9545(b) PCRA, of the which sets forth in part: relevant

(b) petition.— Time for filing

(1) Any petition subchapter, under this a second including or shall be filed subsequent petition, year within one of the final, judgment date the becomes unless the petition alleges and the that: petitioner proves This Court's standard of rеview is limited to the PCRA whether supported by legal court's order the record free error. Abu-Jamal, 724, 719, (2003). Commonwealth v. 574 Pa. 833 A.2d 723 (ii) the facts the claim is were upon predicated to the could not been ascer- petitioner unknown have tained the exercise of or diligence; due (2) Any petition invoking exception para- an provided graph days shall be filed of the date the claim within presented. could have been (b)(2). 9545(b)(1)(ii),

42 Pa.C.S. This Court has held that the time repeatedly limitations pursuant jurisdictional. to the amendments are Com Robinson, 500, 1157, monwealth v. 575 Pa. (2003); 313, 214, Fahy, Commonwealth v. A.2d time go Jurisdictional limits to a court’s or right competency adjudicate to controversy. Id. We have further held that “the PCRA no authority confers upon this Court to fashion ad hoc equitable exceptions to the PCRA time-bar in addition to those exceptions expressly delineated thе Act.” Robinson, 837 A.2d at 1161.

It is clear that the petition instant PCRA filed on August and the supplement petition filed on May facially are untimely they as were not filed one year within the date Appellee’s judgment sentence became final in 1993. Notwithstanding Appellee’s judgment of sentence became final prior PCRA, the 1995 amendments to the this matter involves second and it therefore not fall could under the exception require- timeliness ments for petitions first PCRA filed year within one 3(1) effective date of the amendments. Section of the Act 1), (Spec.Sess. Thus, No. Nov. P.L. No. 32. must demonstrate requirements substantive one of the exceptions the time-bar set forth in Section 9545(b)(l)(i)-(iii) jurisdiction in order for the court to have over petition.

360 claim,11 the Common agree Batson we with Appellee’s

As to prove applica to plead that has failed Appellee wealth 9545(b)(l)(ii) сourt and therefore PCRA bility Section upon the facts grant Simply put, to relief. jurisdiction had no by ascertainable predicated the Batson claim were were which McMa diligence the exercise of due when upon Appellee nothing There of 1997. was April hon released tape was sixty Batson claim within raising from his preventing the statu attempt to circumvent Appellee’s thereafter. days of his predicate that the factual by asserting tory language spe ruling court’s actually claim is PCRA time bar one-year cannot avoid petitioner A PCRA cious. the claim pled predicate the factual by tailoring unmistakably misrepresents way in a v. Commonwealth nature of the claim raised. See actual (2005) 864, Fisher, (rejecting PCRA 870 A.2d 870 582 Pa. 9545(b)(1)(ii)’sexception Section attempt invoke petitioner’s study the date of issuance time-bar based on to the study underlying bеcause the facts methodologies FBI Johnson, available); v. 580 ‍‌​​​‌​​‌‌‌‌​​‌​‌‌‌‌‌‌‌‌​​‌​​‌‌‌​​​‌‌​‌​‌‌‌​‌​‌​‌‍previously were (2004) (holding 426-27 Section 863 A.2d Pa. relied 9545(b)(1)(h) petitioner not satisfied where PCRA was previ facts that could have been containing an affidavit upon diligence); of due Com the exercise upon ascertained ously (2003), Pa. Whitney, v. monwealth Lark, A.2d v. citing Commonwealth that the Baldus- claim (rejecting petitioner’s n. 4 justice system, Philadelphia of the criminal study Woodworth of first de African-Americans convicted indicated that which often than white penalty the death more murder received gree 9545(b)(1)(ii)’s to the defendants, exception fell Section within study upon because the statistics time-bar been record and cannot be said have public based were Here, claim is petitioner). Appellee’s to the unknown of his occurred in the PCRA matter what dependent upon appro pеtition, it is separate claims in his PCRA Appellee raised 11. As independently to determine priate we examine each contention raised, jurisdic we have timely and therefore whether whether it was Fahy, 737 A.2d at 222. address it. Commonwealth tion to been raised independently codefendant and could have however, chose not to manner. Appellee, tape after the McMahon years raise such claim until untimely, As the Batson claim was public. released relief. jurisdiction grant PCRA court lacked are not contrary persuasive. contentions to the reasons for alleges first that Prosecutor McMahon’s and the racial striking venirepersons the African-American to him until such composition jury of his were “unknown” matter. He also Spence’s “facts” were revealed PCRA that he unable to demonstrate a Batson violation argues was cоurt a factual of Spence finding pur- until the PCRA made Appellee discrimination. These claims cannot save as poseful or racial of composition he knew should have known the his and could the reasons behind jury, own have determined merely Prosecutor McMahon’s of striking venirepersons by claim, In litigating regard, the Batson as did. this Spence obvious; that on his Appellee ignores Spence prevailed Batson claim a court of previous finding purposeful without noted, discrimination. As of finding pur- PCRA court’s poseful equal- discrimination in based on evidence available to ly Appellee.12 that Batson claim untime-

Having Appellee’s concluded ly jurisdiction grant filed and that PCRA court lacked claim, Appellant’s relief on such next address remaining we allegations, preserved supplemental which were PCRA petition. States, Appellеe further relies on Johnson v. United 544 U.S. (2005), proposition judicial 161 L.Ed.2d 542 for the that findings triggers purposes construing statutory can be lor of timeli Johnson, however, provision. clearly distinguishable ness is on both legal grounds. Interpreting one-year factual and limitations, federal statute of the United States Court held Johnson prior vacatur of a state conviction used to enhance a federal sentence “fact,” constituted a new which commenced the statute of limitations Here, collaterally attacking Appellee pro the federal sentence. ceeding allege any under the PCRA and has failed to new facts Rather, Appellee's arose his case. the basis for invocation of the exception timeliness for his Batson claim is that his codefendant was granted Appellee relief on a claim that never raised. alternative, that a in the contends

Arguing requirements fit the eligibility Batson claim does not within 9543(a)(2) therefore he is entitled of the PCRA 13and Section (a)(2)(i) Relying relief. on subsection corpus to state habeas eligibility requirements, of Section 9543’s PCRA claim is not a constitutional violation that a Batson argues that no reliable truth-determining process “so undermined taken adjudication place.” or innocence could have guilt Instead, injury against he maintains that which Id.14 equal protection right venirepersons Batson is the protects is unrelated to the against, not to be discriminated concludes that of the rendered. reliability verdict remedy not afford him a on his because PCRA does claim, corpus is entitled to state habeas relief. he invitation to construe a Batson claim decline We of the PCRA. falling statutory as outside framework note that both the PCRA and the state habeas Initially, we that the subsumes the corpus contemplate statute writ provides habeas in circumstances where corpus Peterkin, for the claim. Commonwealth v. remedy (“The action established in at 640. also See obtaining the sole means of collateral subchapter this shall be statutory all other common encompasses relief and law this purpose subchap- remedies for the same that exist when nobis.”); effect, coram including corpus takes habeas ter (“[T]he 6503(b) § of habeas shall not be corpus 42 Pa.C.S. writ 9543, relief,” “Eligibility provides in relevant Section entitled 13. part as follows: (a) eligible subchap- be for relief under this GENERAL RULE. —To ter, by preponderance petitioner plead prove of the must following: evidence all of the (2) or sentence from one or more of That the conviction resulted following: (i) Constitution of this Commonwealth оr the A violation of the which, in the circum- Constitution or laws of the United States case, truth-determining particular of the so undermined the stances adjudication guilt process reliable or innocence could that no place. have taken 9543(a)(2)(i). 42 Pa.C.S. remaining presumably subsections of concedes 9543(a)(2)-are applicable claim. to his Batson Section available if a remedy may be had by post-conviction hearing law.”). proceedings authorized contention,

Contrary we have held that the scope of the PCRA eligibility requirements should not be narrowly confined to its specifically enumerated areas re- view. Commonwealth Judge, Pa. 916 A.2d (2007). Such narrow construction would be inconsistent with the legislative intent to channel post-conviction claims into the framework, id., PCRA’s and would instead create a bifurcated system of post-conviction review some post-conviction where claims are cognizable under the PCRA while others are not. Commonwealth v. Lantzy, 558 Pa. 569-70 Instead, this Court has broadly interpreted the PCRA eligibility requirements as including within its ambit claims one, such as this regardless of the “truth-determining process” language 9543(a)(2)(i). that Appellee invokes from Section See Liebel, Commonwealth v. (2003) 573 Pa. 825 A.2d 630 (holding that claim challenging counsel’s effectiveness for fail- ing to file a petition for allowance of appeal is cognizable PCRA); under Commonwealth ex. rel. Dadario v. Goldberg, (2001) 773 A.2d 126 (holding that claim alleging counsel’s ineffectiveness during plea bargaining process is cognizable PCRA); under the Chester, Commonwealth v. Pa. 733 A.2d 1242 (holding that claim alleging ineffective assistance of counsel during penalty phase capi- tal case is cognizable PCRA); under the Commonwealth v. Lantzy, supra, (holding that claim alleging ineffective assis- tance of counsel for failing to file an appeal is cognizable under PCRA).

We find that Appellee’s claim, which essentially attacks conviction, his underlying murder is akin to the afore mentioned claims which have been held to be within the ambit of the PCRA and is unlike those unique claims which fall outside the PCRA’s statutory scheme. See Commonwealth v. West, (2007) 595 Pa. 938 A.2d 1034 (holding that substan tive due process challenge to continued validity of defendant’s judgment of sentence after a nine-year delay is not cognizable PCRA); Judge, supra, (holding v. Commonwealth

under under appellant’s rights allegation that Canada violated that Rights and is not for Civil Political the International Covenant PCRA).15 As the provides under cognizable claim, to is not entitled seek Appellee on remedy a Batson corpus relief. habeas granting Spence that new

Appellee next cоntends constitutional him relief for same denying trial while as protection him of process equal due deprives violation Constitu Pennsylvania by the United States guaranteed from entirely independent He that this is tions. claim argues it claim, not raised until and that he could have his Batson trial in in the form of new was PCRA relief Spence granted claim filed concludes this March 2004. Spence court’s sixty ruling of the PCRA days within 9545(b)(2). § to 42 Pa.C.S. timely pursuant therefore upon Batson claim is based recognize We discrimi- protection right not to be venirepersons’ equal claim process/equal protection his due against, nated while to be treated equal protection right not alleges own Nevertheless, pro- the due differently from his co-defendant. . The PCRA protection untimely. claim is likewise cess/equal cannot serve as a “fact” which grant Spence of relief to сourt’s ascer- and “could have been was “unknown” diligence” pursuant tained the exercise due 9545(b)(1)(h), “fact” evolve from as such did not purported words, no case. In other any way Appellee’s or relate because the unequal treatment exists predicate factual raised by on a claim never of relief to was based grant petition. in a or appeal direct Moreover, the PCRA Batson claims within this Court has examined framework, being applicability challenges without raised as to albeit upon by Appellee. eligibility requirements relied here See the PCRA Jones, (2006) (finding 912 A.2d 268 v. Commonwealth Sneed, waived); (holding supra, v. claim Commonwealth Batson waived, counsel was derivative claim that while Batson claim cognizable under failing claim is to raise the Batson ineffective for Wharton, PCRA);. Pa. A.2d 978 waived). (finding claim Cruz, 578 Pa. v. on Commonwealth reliancе ‍‌​​​‌​​‌‌‌‌​​‌​‌‌‌‌‌‌‌‌​​‌​​‌‌‌​​​‌‌​‌​‌‌‌​‌​‌​‌‍Cruz did not misplaced therefore as is 851 A.2d 870 require timeliness of the PCRA’s interpretation an involve in a a claim Cruz Instead, raised petitioner ments. and process he denied due that was PCRA on treatment disparate because he received equal protection to his codefendant. review, compared when appellate direct standing had his codefendant petitioner both the Although evidence, fact, of the same and, suppression sought to seek on direct a new trial granted codefendant was petitioner’s denied was petitioner issue and the suppression on the appeal equal relief on grant not this Court did the same. While id. held that the we concepts, process or due protection suppression underlying to relief on his entitled petitioner was in the particu collateral review issue, on which was “available Id. at 878. Cruz clearly is presented.” circumstances larized the relief sought never as distinguishable Ac to the same. not entitled granted was Spence was factual demonstrate a viable has failed to cordingly, Appellee of 42 fact exception the after-discovered to invoke predicate 9545(b)(1)(ii). entitled to the Moreover, not have been Appellee would such timely preserved treatment had he same constitutional after Batson had trial occurred Although Appellee’s claim. decided, challenge time to he had no basis at that been venirepersons American striking of African discriminatory three years It not until is Caucasian. because held in Powers v. Supreme Court later that the United States Ohio, 400, 402, 111 113 L.Ed.2d to race-based (1991), object may that a criminal defendant or not the defendant jurors, whether prospective exclusions of has the same race. This Court juror the excluded share ruled that Poivers cannot retroactively applied be expressly preserve failed petitioner where petitioner African- striking of the Commonwealth’s by challenging issue Commonwealth again appeal. at trial and jurors American Tilley, v. 566 Pa. reaffirmed in holding Tilley

Our Sneed, Sneed, (2006), In 899 A.2d 1067 supra. petitioner’s place prior the PCRA trial took United decision in Batson. In his subsequent States Court’s petition, petitioner alleged a Batson violation. We that such claim could not afford relief petitioner held he claim by failing challenge because waived use of at trial and on peremptory challenges Commonwealth’s 899 A.2d at appeal. petition- direct 1075. We stated er entitled to application “would be retroactive if appeal, certainly Batson decision this were direct and he to benefit not entitled its retroactive on collateral attack under Id. PCRA.” Thus, in addition to the fact that failed to raise a Appellee Batson claim in a our decisions in petition, and Sneed establish that not Tilley clearly Appellee would be a upon entitled to relief based retroactive of Pow- application preserve ers because he failed to claim. underlying next contends that that this Court should review 9711(h)(3)®, § his death sentence under to deter- “any mine if it is the product arbitrary factor.” Section 9711(h), of Death provides entitled “Review Sentence” that “A subject sentence of death shall be to automatic by review Pennsylvania to its rules.” Id. at pursuant Court 9711(h). (3)(i) that our shall provides Subsection Court affirm the sentence of death unless it determines that “the product sentence of death was the or рassion, prejudice any arbitrary other factor.” This claim fails as sets Section 9711 forth this obligation reviewing Court’s a death sentence on no appeal, application direct and has to a for collateral pursuant relief filed to the PCRA.

Finally, Appellee argues that in the event that find we meritless, his claims to be we should remand this nevertheless matter to the PCRA court so that a can be held on his hearing Atkins claim. that the Appellee acknowledges PCRA court’s stated that the court opinion explanation without had “denied relief under the Atkins claim” on October 2005. PCRA however, out, points 2006 at He Opinion Court dated June 5, 2005, held on the court hearing the PCRA October not on the Atkins claim. expressly ruling indicated that it was record, regard claim this is supported the following: reveals Honor, THE Your COUNSEL FOR COMMONWEALTH: claim, not rule on you just going as far as the Atkins are to that?

THE I’m оn that. If going you COURT: rule want Atkins, hearing me to on I’ll on hearing have have Atkins.

Notes of Testimony Hearing dated October Further, at 18. order of court’s handwritten October ’ states, “Court claim grants new trial under ‘Batson 476 U.S. Atkins.” order S.Ct. 1712Not under Such does not fully indicate that the Atkins claim was considered and denied.

The not be responds should given opportunity present another on the Atkins evidence issue case specifically when remanded this for that purpose we any failed to on present evidence unclear, however, fact, issue.16 It is Appellee, whether given an opportunity present evidence this claim. Un- der these circumstances and least because is at entitled ruling to a on the Atkins claim that the can so issue be on appeal, reviewed remand the matter to the PCRA we court for disposition of the Atkins claim. herein, for the set

Accordingly, reasons forth vacate the we order of the PCRA court and remand the matter to court that solely disposition Atkins claim.17

Justice GREENSPAN did participate or consideration decision this case. timely

16. The Commonwealth conceded that the issue Atkins filed. Testimony Hearing Notes of of PCRA October at dated 6. hearing 17. We it to leave the PCRA court's whether a is discretion necessary explore the claim to Atkins and to enable the court to issue a ruling opinion reasoned and on the matter. opinion. join TODD Justice McCAFFERY Justice opinion files a concurring Justice CASTILLE Chief join. Justice EAKIN and McCAFFERY which concurring opinion. SAYLOR files a Justice

[*] ^{[*] [*]} CASTILLE, concurring. Chief Justice Majority I the learned which vacates join Opinion, relief granting appellee order of the PCRA1 court erroneous in its belated entirety. Appellee’s his serial petition, on claim, equal proteсtion/due as well as derivative Batson2 to claim, subject any time-barred and not plainly is process judge limited time-bar and the PCRA should exceptions, statutory those commands. See have followed 9545(b). to a concern separately only I write address with the Batson claim and approach the PCRA court’s claim, and to address made in Mr. Justice point Atkins3 Concurring Saylor’s Opinion. accepted court alterna- appears appellee’s

It that theory grant of Batson relief his co-defendant tive to a due or contemporaneously gave process equal rise viable identical relief via a serial demand protection right notes, Berry the Honorable Willis Majority As petition. (who trial of a judge) legal finding not the made respect Spence, allegedly with to co-defendant who violation African-American, objection actually who raised Batson trial, challenge after apparently who renewed tape.” Judge Berry erroneously disclosure of “McMahon he granted the relief the co-defendant’s concluded fact” made appellee’s claim was a “new own preserved in a untimely Batson claim—raised serial unpreserved At timely and meritorious. the end of his petition —both Act, §§ Post Conviction Relief 42 Pa.C.S. 9541-9546. Kentucky, 106 S.Ct. 90 L.Ed.2d 69 2. Batson v. Virginia, 153 L.Ed.2d 335 Atkins v. 536 U.S. 122 S.Ct. 3. relief, Berry Judge he why granted of explanation theory “equal protection” alternative appellee’s addressed paragraph: following concluding discrimination, and a re-trial purposeful There was It be patently is scheduled.... would [co-defendant] under the equal protection unjust deny Petitioner’s [sic] he on the basis that did and U.S. Constitutions Pennsylvania color, especially skin when not share his co-defendant’s doer, аctual and Petitioner was retrial be for the will fact, co-defen- right thing, every In to do the lookout.[4] Hackett, Gray, and Richard James Spence, dant —Moms not, in a or should raised Keith Barrett —whether trials. given overturned and new have their convictions as a unpersuasive jurispruden- and analysis This irrelevant nation, Commonwealth, of matter. is a laws. tial Ours law, to indulge vague exists to construe the judiciary The may “doing of feel amount to judge notions what would judge The should right thing” the absence law. law, including of his to consult and apply be mindful duties in the PCRA. salutary restrictions issue, Atkins on the judge’s performance The PCRA which for reconsideration in is equally this Court remanded of an troubling. handling The PCRA court’s indeterminate Atkins claim we as its specifically superficial remanded was as of the defaulted Batson analysis unripe equal protection inexplicably claims it embraced. Saylоr’s I to address Justice obser-

Finally, separately write that “Batson violations are a Concurring Opinion vation conspiracy multiple victims Appellee's active role this to murder As was far more than as a mere lookout. this Court noted direct conspiracy appeal, arose as the result of a “Hackett's convictions killing Ogrod.’’ primary purpose Gregory Common- he led for the Hackett, (1993). Appellee's wealth v. living arrangement against Ogrod from "a that went animus arose bad,” drug- Spence's while co-defendant animus arose from a “soured early morning, dealing relationship” Ogrod. In with Id. advance injuries Ogrod resulted in serious and the murder brutal assault that heart, sixteen-year-old Maureen Dunne a stab wound to the had, Ogrod, announcing his intention to kill appellee in addition to $5,000 Ogrod to kill Dunne. Id. at 721-22. offered a “hitman" Ms. of the crimes. was an architect ‘аffecting form of structural error framework within which than in the trial proceeds, simply the trial rather ‍‌​​​‌​​‌‌‌‌​​‌​‌‌‌‌‌‌‌‌​​‌​​‌‌‌​​​‌‌​‌​‌‌‌​‌​‌​‌‍an error ” Op. at 1 Arizona v. process Concurring Slip (quoting itself.’ Fulminante, 279, 1246, 111 113 L.Ed.2d 302 499 U.S. S.Ct. (1991)). As for its characterization of Batson viola support error, a of structural type Concurring Opinion tions as Fulminante, Court’s decisions in cites U.S. Benitez, 74, 542 124 Dominguez States v. S.Ct. United U.S. States, (2004), 159 157 and Neder v. United 527 L.Ed.2d (1999), 119 144 L.Ed.2d 35 as as this U.S. S.Ct. well Basemore, decision in Court’s Yet, n. nor 734 & 18 neither Neder at all each Dominguez Benitez mentioned Batson violations as Neder, only generally, addressed structural error see 527 U.S. Benitez, 8-9, 119 1827; 81, 124 Dominguez at at S.Ct. U.S. and, identify Fulminante did discrimination S.Ct. while error, type selection as a of structural it did so grand jury laundry as a only example among elaboration and one without Fulminante, others, see at many list of Similarly, merely Basemore commented without elabo fall limited unique ration that “Batson violations within a which, by of claims the nature of their category impact upon trial, subject the fundamental fairness of are not to conven Basemore,. prejudice analysis.” tional harmless error or A.2d at 734. that, if merely my impli-

I note own view a Batson claim error,” it form unique cates “structural is of structural error. errors defendants of typically “deprive pro- Structural basic trial reliably tections which a criminal cannot serve its without function as a for determination of or innocence guilt vehicle punishment may regarded and no criminal be as fundamental- Neder, 8-9, at ly (emphasis fair.” 527 U.S. 119 S.Ct. 1827 added) (internal omitted). quotation marks The classic exam- contrast, In right is denial of the counsel. as Batson’s ple clear, has made the core progeny right being protected citizen-jurors not to discriminated right Batson is the be occurs, against. purposeful such discrimination reliеf When to a defendant or the may granted party be Common- —the in a criminal the discrim- irrespective wealth of whether case— that, fact, ination was unable to be fair. produced jury The error is “structural” in the sense that it is the only type Thus, claim that does not of actual I require proof prejudice. do believe that it is the “structural” nature of the claim weighs expansive “standing” approach. favor of an juror The “standing” expansive because it is the whose Commonwealth, right is primarily issue: or the defen- be, dant as may objects the case right vindicate the of a citizen lacks “standing” object. who himself to

Finally, respectfully, I note that I would believe the Spence5 procedural requirements are in the salutary direct paradigm. review A true assessment of strikes must account for the composition whole, of the panel as and the of conduct other lawyers exercising strikes. It must be remembered that issue, both ways: right jurors works at being neither discriminate, the defense nor prosecution may discriminating side, for, of one if actions unaccounted result in an incomplete picture.

Justice EAKIN and join McCAFFERY this opinion. SAYLOR,

Justice concurring. To my knowledge, neither this Court nor the United States squarely Court has addressed issue of whether a Caucasian being defendant tried jointly with African Ameri- cans has to standing raise claim of racial in discrimination jury selection which pertain only otherwise would to the codefendants. 1 believe that such standing should be accord- ed, since Batson violations are a form of structural error “affecting the framework within which the trial proceeds, rather than simply Ari- itself,” an error in process the trial Fulminante, zona v. 279, 310, 1246, 1265, 499 U.S. 111 S.Ct. (1991), 113 L.Ed.2d 302 and “undermining the criminal pro- ceeding’s fairness as a United States v. Dominguez whole[.]” Benitez, 74, 74, 2333, 542 124 S.Ct. 159 L.Ed.2d 157 Statеs, see also (2004); Neder v. United 1, 8-9, 527 U.S. 119 (1993). Spence, 5. Commonwealth v. 534 Pa. 627 A.2d 1176 1827, 1833, generally Com 144 L.Ed.2d See Basemore, Pa. n. 744 A.2d v. 288 & monwealth (2000) n. 18 that a Batson violation (explaining 734 & error). view, In my standing such would represents structural in between codefendants any parse eliminate need error, a special category and limited assessment structural measure, both in impossible that is impact of claim with and, public generally, of the trial under review more terms judicial system. confidence said, are trou- the circumstances presented That while or should agree majority I with the knew bling, pertain- facts his claims underlying of the central have known more than racial discrimination his selection ing jury filing present post-conviction sixty days prior to reason, and, jurisdiction our is presently such petition, under Post Relief Act. foreclosed Conviction majority’s require regard to the adherence With 233, 246-7, Spence, v. 534 Pa. ments (1993), I my left to devices would A.2d 1182-83 own unpre as such and review Spence requirements eliminate served, of racial in jury claims discrimination post-conviction under otherwise set forth Common selection the standards Uderra, wealth that, to claims from absence

(holding deriving relation trial, post-conviction petitioner appropriate objection of an Batson, but rely prima on the case under may facie discrimination). actual, rather, See id. prove purposeful must 12, n. 12 of n. 862 A.2d at 86 the view this (reflecting at 513 at stringent, that the are too least Spence requirements author any challenges all across the board applied as selection). in jury racial asserted discrimination proceedings I remand for Finally, support additional 536 Virginia, claim under Atkins v. U.S. concerning ‍‌​​​‌​​‌‌‌‌​​‌​‌‌‌‌‌‌‌‌​​‌​​‌‌‌​​​‌‌​‌​‌‌‌​‌​‌​‌‍Appellee’s (2002). merely L.Ed.2d 335 I 122 153 would S.Ct. matter such a clаim is note that it is an unsettled whether jurisdictional procedural requirements subject PCRA, to treatment under appropriately or more suited I under- Personally, the latter corpus principles. habeas favor

373 Supreme Court since United States standing, particularly to those the Atkins in terms identical principle has couched 399, 106 S.Ct. Wainwright, under Ford v. 477 U.S. pertaining Amend- (holding Eighth 335 that the 91 L.Ed.2d mental illness prohibits persons ment execution whose penal- them from the reasons for the prevents comprehending Atkins, 321, 122 at S.Ct. ty implications). and its See U.S. that “the Constitution (explaining States] at [United to take power a substantive restriction on State’s ‘places Ford, mentally (quoting the life’ of a retarded offender” 2599)). well, Notably, at as Court claims of as matters analogous ineligibility has treated death habeas Commonwealth v. arising corpus. under state See 126, 141-42, 916 A.2d 520-21 Judge, 591 Pa. Respondent Pennsylvania, COMMONWEALTH ROHN, Petitioner. Jamod Pennsylvania. Court of

Aug. ORDER PER CURIAM. NOW, day August, Application

AND this 26th for Relief under Pa.R.A.P. 123 is DENIED.

Case Details

Case Name: Commonwealth v. Hackett

Court Name: Supreme Court of Pennsylvania

Date Published: Sep 26, 2008

Citation: 956 A.2d 978

Docket Number: 492 CAP

Court Abbreviation: Pa.